0120101532
08-20-2010
Desiree C. Noble, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Desiree C. Noble,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120101532
Agency No. 2009-22678-RITA-01
DECISION
On February 24, 2010, Complainant filed an appeal from the Agency's January 25, 2010, final action concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Assistant in the Agency's Office of Research, Development and Technology in Washington, D.C. FAD, at 1.
On May 11, 2009, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII when on October 23, 2008, she received an overall rating of "Unsatisfactory" on her performance evaluation. EEO Complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final action pursuant to 29 C.F.R. � 1614.110(b).
The agency determined that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The record reveals that Complainant had filed a prior EEO complaint on August 24, 2007, and it was dismissed by the Agency on October 4, 2007, for failure to state a claim. FAD, at 2. According to Complainant, that complaint concerned the way her Supervisor (the Associate Director) and the Deputy Associate Director interacted with her. Id. The instant complaint involves the rating issued to Complainant by the Deputy Associate Director while serving as the Acting Associate Director in the Supervisor's absence. The Agency determined that Complainant established a prima facie case of reprisal as the Deputy Associate Director was aware of the prior complaint and the performance evaluation occurred at such a time in relation to the prior EEO activity that a retaliatory motive could be inferred. Id. at 15.
The record indicates that Complainant was issued a rating of "Unsatisfactory" on her performance evaluation based on several deficient aspects of her job performance. According to the Deputy Associate Director, Complainant made errors on time and attendance and she received complaints about Complainant's service. Id. at 4. The Deputy Associate Director noted that after receiving a complaint from a Senior Executive Service employee, she had to instruct Complainant to do his travel authorizations, planning and vouchers. Id. The Deputy Associate Director stated that she was informed by the front office that Complainant was not wanted there as part of the support staff rotation due to her negative attitude. Id. Further, the Deputy Associate Director reported that other staff members told her they were hesitant to deal with Complainant based on her difficult attitude. Id. Additionally, Complainant was cited for having sent inappropriate e-mails to upper management and for engaging in inappropriate behavior such as walking around the front office barefoot. Id. at 15. The Deputy Associate Director stated that Complainant had performance deficiencies, which were mentioned to her during her midpoint progress review, and that she failed to meet the minimum standards as described in her job elements. Id. at 4. The Agency determined that it articulated legitimate, nondiscriminatory reasons for the "Unsatisfactory" rating. Id. at 15.
The Agency determined that Complainant failed to establish that its reasons were pretext. Id. The Agency noted that Complainant failed to establish that her performance met the standards as described in her job elements, or that other employees outside of her protected group had similar performance deficiencies but received a higher rating. Id. Although the Agency acknowledged that Complainant submitted the testimony of some coworkers who stated that they did not have any problems working with her and getting along with her, the Agency stated that this did not negate the fact that she had problems interacting with officials in the front office. Id.
On appeal, Complainant contends that neither the Associate Director nor the Deputy Associate Director articulated or documented during the mid-year performance review performance deficiencies or problems in any of the critical job elements that would have warranted a rating of "Unsatisfactory". Complainant attempts to establish that the "Unsatisfactory" rating was unwarranted by referencing an individual time off award for 18 hours that she received effective March 6, 2008; an "Achieved Results" rating that she received on her performance appraisal for the prior Fiscal Year; and the statements of two of her coworkers that they had problems getting along with the Deputy Associate Director during the time the Associate Director was away on detail. Complainant also references the Agency's Performance Management Program for her position that she should have been offered assistance and the opportunity to improve her performance.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veterans Affairs, EEOC Request No. 05960473 (November 20, 1997), a Complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
We shall assume, arguendo, that Complainant established a prima facie case of reprisal. The Agency stated that Complainant was issued a rating of "Unsatisfactory" on her performance evaluation based on several deficient aspects of her job performance. The Deputy Associate Director rated Complainant on the critical job elements of Clerical and Administrative Assistance and Professional Behaviors/Quality Improvement as "Unsatisfactory". Performance Appraisal. Complainant was rated as "Minimally Satisfactory" for the critical job elements of Customer Relations, Personnel and Program Assistance, and EEO/Diversity. Id. Complainant was cited for a difficult attitude at times which caused some officials and coworkers to not want to deal with her. There were also occasions where Complainant was noted as being reluctant to provide assistance for assignments that fell within her job description. With regard to the critical job element of Professional Behaviors/Quality Improvement, Complainant was cited for tardiness and absences from work that impact office operations. FAD at 9. According to the Deputy Associate Director, Complainant also needs to control her anger with supervisors as to requests for information or being given instructions. Id. The Deputy Associate Director stated with regard to the Clerical and Administrative Assistance job element that Complainant needed to pay more attention to details when completing the time and attendance records as there were errors in these records for at least the past six pay periods. Id. at 8. Complainant was also cited for spending an excessive amount of time on the telephone with personal calls even though she was told to limit such calls. Id. Further, the Deputy Associate Director stated that Complainant does not follow up with travel authorizations independently or when requested without complaining, and needs to improve upon picking up missed calls. Id. We find that the Agency articulated legitimate, nondiscriminatory reasons for rating Complainant's performance as "Unsatisfactory".
With regard to the arguments Complainant submits on appeal, we observe that her performance evaluation from the prior year has no relevance on how she performed during the Fiscal Year at issue. Complainant's time off award is not sufficient to negate the negative aspects of her job performance. The statements of two coworkers that they had no problems with Complainant indicates that Complainant's attitude was not consistently an issue with all of her fellow employees, but it does not refute the instances cited by the Agency as evidence of an attitude problem. We note that one coworker stated the Deputy Associate Director could be stern or impolite with subordinates. Id. at 7. However, that quality of her management approach is not sufficient to establish that reprisal occurred. As to Complainant's contention that her alleged deficiencies were not discussed at the mid-year performance review, the Deputy Associate Director asserted that she advised Complainant that she was not fulfilling the standards. Id. at 4. Although there is no documentation showing that Complainant was informed of her deficiencies, we do not find it credible that Complainant was unaware that her job performance was regarded as deficient in light of the various criticisms that she received throughout the Fiscal Year. Similarly, with respect to Complainant's statement that the Agency did not afford her assistance and opportunity in improving her job performance, we find little credence in this contention. It is evident that Complainant was frequently reminded that she had not performed certain duties that were part of her position and that such responsibilities needed to be accomplished.
CONCLUSION
The Agency's determination in its final action that no reprisal discrimination occurred is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 20, 2010
__________________
Date
2
0120101532
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101532